Court reignites reporters' privilege controversy

A court ruled Friday that a reporter has no protection against testifying in a leak trial. | Reuters

Judge Roger Gregory dissented, accusing his colleagues of being cavalier about the role of the press in America’s democracy.

“Undoubtedly, the revelation of some government secrets is too damaging to our country’s national security to warrant protection by evidentiary privilege. Yet the trial by press of secret government actions can expose misguided policies, poor planning, and worse,” Gregory wrote.

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“The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today,” he added.

Risen’s lawyers could ask the full bench of the appeals court to review the decision or file a petition with the Supreme Court.

“We are disappointed by and disagree with the Court’s decision. We are currently evaluating our next steps,” Risen attorney Joel Kurtzberg said Friday.

It’s possible the Justice Department could seek to defuse the dispute by withdrawing the subpoena, citing the new internal guidelines which appear set a higher standard for seeking journalists’ testimony. At one point, prosecutors indicated they intended to go forward with Sterling’s trial even without Risen’s testimony.

However, after Brinkema ruled they could not use some evidence, the government filed an appeal and included her ruling that said Risen would likely not be required to testify beyond broadly authenticating the accuracy of his book.

In a separate part of Friday’s opinion, the appeals court overturned Brinkema’s evidence rulings as well.

The Justice Department said Friday it was still weighing its options. “We agree with the decision,” said spokesman Peter Carr. “We are examining the next steps in the prosecution of this case.”

Sterling’s attorney Ed MacMahon, who took no position on the reporter’s privilege fight, blasted the administration Friday over the ruling. “Despite what you read in the paper about Holder being so solicitous to reporters, the legal result they obtained in this case is exactly what they asked for,” said MacMahon. “The government specifically argued that there was no reporters’ privilege, because Risen’s receipt of the information was a crime.

“I always anticipated that we were going to have to try this case,” the defense lawyer added. “This has just been almost another two years of delay for Jeffrey Sterling. When the time comes, we will be ready to defend the case under whatever rules they set for us.”

Press advocates noted the breadth of the ruling. “They kind of went out of their way to not just vote down the privilege but to set the historical record straight, in their opinion, to try to eliminate any traces of it in the criminal context,” said Gregg Leslie of the Reporters’ Committee for Freedom of the Press.

Leslie also said the opinion does put the issue squarely in the Justice Department’s court.

“It will be interesting to see whether they are willing to reconsider their demands in light of everything that’s happened recently,” he said.

Traxler was appointed to the appeals court by President Bill Clinton, but was earlier named to the district court by President George H.W. Bush. Diaz was appointed by President Barack Obama.

Gregory, the dissenter on the reporters’ privilege ruling, was named to the 4th Circuit as a recess appointment by Clinton near the end of his term, after the Senate did not act on his nomination. President George W. Bush re-nominated Gregory in 2001.